Commissioning Affidavits: The LSO Is Only Part of the Picture

To many individuals’s delight, the Legislation Society of Ontario has acknowledged that it’s deciphering part 9 of the Commissioners for Taking Affidavits Act to incorporate digital commissioning. Reponses to a Slaw submit by Pulat Yunusov from final November, in assist of the LSO’s then place in opposition to digital commissioning have been dismissive of his issues about digital commissioning; additionally they illustrate the eagerness with which persons are eager to throw off the bonds of in-person commissioning. (Yunusov burdened the significance of the ritual, in addition to the incapability of assembly some necessities by means of know-how.)

Nonetheless, the LSO isn’t the solely sport on the town relating to the query of whether or not a commissioner can take an affidavit not in the presence of the deponent. There’s additionally the regulation, the Guidelines of Apply and the Legal Code that deal with the circumstances beneath which an affidavit is to be taken.

The LSO has (as I recall) beforehand acknowledged that attorneys have been commissioning affidavits nearly, however has warned of issues. It has now gone additional particularly in response to COVID-19 and pro-actively “permits” digital commissioning. It continues to warn of the pitfalls, together with the risk of fraud, undue affect or duress, whether or not the deponent has the capability to swear/affirm an affidavit and whether or not the deponent has the alternative to ask questions.

The LSO additionally states, “If attorneys and paralegals select to make use of digital commissioning, they need to try to handle some of the dangers related to this observe as outlined beneath.” The phrases “try to handle” is a comparatively low bar and for the most half, the LSO’s suggestions are correspondingly imprecise. For instance, if there’s a danger {that a} shopper could also be topic to undue affect or duress, the steerage is to “take into account if you’ll be able to help the shopper at the moment with out assembly in particular person”. And if not, then what? Presumably you have to meet in particular person, so long as you keep six ft aside. Equally, the recommendation respecting whether or not the shopper has capability is for the lawyer to seek the advice of the related laws and resolve if they’ve the means to find out capability (all the time the case) and if they’re utilizing video conferencing or phone completely, “also needs to assess whether or not there’s a danger that the shopper could also be topic to undue affect or duress.” Full circle.

It could be that for attorneys who’re already aware of the circumstances of the doable deponent’s life, the problem of whether or not there could also be undue affect or duress could be extra simply decided. Nonetheless, if the lawyer is requested by somebody new to take an affidavit, there’s a actual danger that somebody exterior the image could also be threatening or implicitly threatening the deponent, as could be the case the place the deponent is a sufferer of home violence. (I observe that this can be a danger in particular person, even when the particular person exercising undue affect or duress isn’t in the workplace, however digital commissioning enhances the drawback; and the drawback is additional exacerbated throughout COVID-19 as a result of of the calls for of social isolation.)

The LSO can resolve, then, that for objective of skilled conduct complaints, practitioners who fee affidavits nearly is not going to must face a disciplinary inquiry, except, presumably, there are allegations that they haven’t taken care to handle the dangers (no matter that requires) or they can not present they’ve managed the dangers: an impressive query is who has the onus right here, on condition that this can be a departure from present necessities.

It hardly bears saying, nonetheless, that the LSO can’t resolve to interpret the regulation any approach it chooses or that its interpretation has someway nullified part 9 of the Commissioners for Taking Affidavits Act. The Legislation Society of Alberta has determined it isn’t its place to interpret the regulation unilaterally, resiling from offering its personal interpretation, saying,

The Legislation Society isn’t capable of chill out the guidelines which require in-person execution of testamentary paperwork, transfers of title, and sworn affidavits as a result of these are guidelines created by statute. Because of this solely the Authorities can change these guidelines through statutory modification. The Legislation Society will probably be talking to Authorities about this in the hopes of getting ‘pressing’ statutory amendments made. (COVID-19 FAQs)

To be clear, “Legal professionals who act as commissioners or notaries ought to be in the bodily presence of the deponent to manage the oath.” The Legislation Society of Alberta, nonetheless, additionally states that it’s speaking to authorities to see if emergency amendments may be made to the laws. (For necessities governing commissioners and affidavits in Alberta, see Commissioners for Oaths Regulation beneath the Notaries and Commissioners Act, Info and Directions for Commissioners for Oaths and subrule 13.9(1) of the Alberta Guidelines of Courtroom.)

Let’s, for a second, like the Legislation Society of Alberta, fake the regulation issues.

In Ontario, part 9 of the Commissioners for Taking Affadavits Act states as follows:

9 Each oath and declaration shall be taken by the deponent in the presence of the commissioner, notary public, justice of the peace or different officer or particular person administering the oath or declaration who shall fulfill himself or herself of the genuineness of the signature of the deponent or declarant and shall administer the oath or declaration in the method required by regulation earlier than signing the jurat or declaration.

Part 11 of the Act makes it an offence to make use of an affidavit in any proceedings “figuring out that it was not taken, sworn to or made in conformity with part 9” and prescribes a penalty of no more than $2,000 and beneath part 12, the appointment of a commissioner for taking affidavits could also be revoked.

The Guidelines of Civil Process beneath the Courts of Justice Act additionally make provision for affidavits: “4.06 (1) An affidavit utilized in a continuing shall, … (e) be signed by the deponent and sworn or affirmed earlier than an individual licensed to manage oaths or affirmations.” Different provisions deal with the place there are two or extra deponents, the deponent is illiterate or blind or the deponent doesn’t perceive the language utilized in the affidavit and in all instances, the affidavit is to be taken in the presence of the particular person taking the affidavit. Nonetheless, part 2.01(1) of the Guidelines states failure to adjust to the guidelines is an irregularity and non-compliance doesn’t render a doc a nullity and “solely the place and as vital in the curiosity of justice, could [the court] put aside the continuing or a step, doc or order in the continuing in complete or partly.” This doesn’t imply a celebration could not make a movement attacking an affidavit that’s in non-compliance, topic to sure preconditions and with go away of the courtroom. Part 2.03 states, “The courtroom could, solely the place and as vital in the curiosity of justice, dispense with compliance with any rule at any time.”

Part 138 of the Legal Code gives, “Each particular person is responsible of an indictable offence and liable to imprisonment for a time period of no more than two years or is responsible of an offence punishable on abstract conviction who . . . (b) makes use of or presents to be used any writing purporting to be an affidavit or statutory declaration that he is aware of was not sworn or declared, as the case could also be, by the affiant or declarant or earlier than an individual licensed in that behalf,

(a) indicators a writing that purports to be an affidavit or statutory declaration and to have been sworn or declared earlier than him when the writing was not so sworn or declared or when he is aware of that he has no authority to manage the oath or declaration….

The LSO acknowledges it isn’t its position to control statutes. (“Commissioning is ruled by the Commissioners for Taking Affidavits Act and isn’t regulated by the Legislation Society.”). Right here its interpretation isn’t in accord with the specific provision of the Commissioners for Taking Affidavits Act and, certainly, it’s opposite to it. Moderately, it has taken upon itself to announce a sensible response to the actuality that the majority regulation companies have successfully shuttered their premises and its attorneys are working from residence.

Additionally it is in all probability no coincidence that the amendments to the Commissioner for Taking Affidavits Act included as Schedule 5 to Invoice 161, the omnibus invoice that may amend 20 “authorized” statutes if enacted, contemplates digital commissioning. The Commissioners for Taking Affidavits Act will nonetheless require the affidavit to be sworn/affirmed in the presence of the deponent, however it additionally gives for digital commissioning if regulatory situations are met. The new part 9 would learn:

9 (1) Each oath and declaration shall be taken by the deponent or declarant in the bodily presence of the commissioner, notary public, justice of the peace or different officer or particular person administering the oath or declaration.

(2) Regardless of subsection (1), if the rules made beneath this Act so present and the situations set out in the rules are met, an oath or declaration could also be taken by a deponent or declarant in accordance with the rules with out being in the bodily presence of a commissioner, notary public, justice of the peace or different officer or particular person administering the oath or declaration.

Invoice 161 has not but been enacted and, of course, no rules offering for digital commissioning beneath the specified situations exist. It’s noteworthy, nonetheless, that Lawyer Common Doug Downey tweeted the following: “Can a lawyer or paralegal use digital commissioning in the context of COVID-19? Here’s a
@LawSocietyLSO information” and stating, “This subject is an element of my #SmarterAndStrongerJusticeAct #Invoice161” with a hyperlink to the LSO web site. Little doubt the LSO has had discussions with the Lawyer Common about this and different provisions in Invoice 161 and maybe anticipates that the rules beneath the Commissioners for Taking Affidavits Act will replicate the dangers, and probably responses to them, reflective of these set out by the LSO. Thus in offering the okay for digital commissioning inside its personal jurisdiction, it could be pondering it isn’t solely responding pragmatically to the calls for of social distancing, but in addition sneaking forward of the post-COVID-19 world when Invoice 161 is enacted.

Moreover, the courts have suspended most in-person proceedings and are themselves working in massive measure remotely for pressing issues solely most often (see my Slaw submit on courtroom responses to COVID-19 and the record of courtroom web sites on the homepage of the Canadian Judicial Council web site). Judges would possible take a liberal view of any offence charged beneath the Legal Code or beneath the present Commissioners for Taking Affidavits Act, when “errors” happen in good religion. These are extraordinary instances with emergency measures; but we have to do not forget that these are precisely the time when those that are weak to duress or to being taken benefit of in different methods are significantly prone.

Commissioning Affidavits: The LSO Is Only Part of the Picture

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